Byrd v. Harrell

Case: 17-40996 Document: 00516454624 Page: 1 Date Filed: 08/31/2022

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

August 31, 2022

No. 17-40996 Lyle W. Cayce

Clerk

Robert A. Byrd,

Plaintiff—Appellant,

versus

Tony Harrell; Kelli Ward; Michael Black,

Defendants—Appellees.

Appeal from the United States District Court

for the Eastern District of Texas

USDC 6:14-CV-986

Before Wiener, Graves, and Duncan, Circuit Judges.

Stuart Kyle Duncan, Circuit Judge:

While violently resisting several prison guards, prisoner Robert

Byrd’s arm was broken by one guard’s baton strikes. Byrd sued for excessive

force. The district court granted the guard summary judgment based on

qualified immunity. We affirm.

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No. 17-40996

I.

In July 2014, Byrd was serving concurrent life and 99-year sentences

for capital murder and organized crime convictions in the Texas Department

of Criminal Justice’s Coffield Unit in Tennessee Colony, Texas. 1 On the

morning of July 15, Byrd was cited for a disciplinary violation for throwing

water on an officer, Jeanenne Dehart. Just after noon he was cited again for

throwing water on another officer. At approximately 2:45 P.M., prison

officials authorized the use of chemical agents and a five-man force move

team, led by Sergeant Tony Harrell, to gain Byrd’s compliance with the

prison’s restraint procedure for a strip search. Dehart witnessed with a

handheld video camera. A hallway surveillance camera also captured the

ensuing altercation.

Harrell approached Byrd’s cell and asked Byrd to comply with a strip

search. When Byrd refused, Harrell sprayed a chemical agent into Byrd’s

cell. In response, Byrd wrapped his face in a jacket and towels, rendering the

spray ineffective. Byrd hollered, “Is that all you got?”

The five-man force team then moved into the hallway. Harrell asked

again, “Are you going to comply?” Byrd responded, “No.” For nearly a

minute, Harrell waited in vain for the chemical agent to take effect. Harrell

initiated the force team and radioed “open 20”—Byrd’s cell.

As the cell door edged open, Byrd pushed out and into the force team

shields. The team pushed back, and Harrell swung his riot baton at Byrd’s

legs. At this point, the handheld camera went dark, though the sound

1

See Byrd v. State, No. 2-08-124-CR, 2009 WL 672390, at *1 (Tex. App. Mar. 12,

2009); Byrd v. State, No. 10-08-390-CR, 2009 WL 3048612, at *1 (Tex. App. Sept. 23,

2009).

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continued to record. 2 From the view of the surveillance camera, Byrd fell to

one knee and then to the ground. Harrell swung his baton at Byrd’s arm, as

Dehart twice announced that the camera had stopped working.

Over the next 20 seconds, Harrell stepped back and observed the force

team wrestle to restrain Byrd. One officer yelled, “Put your arm out!”

Another officer grabbed Byrd in a chokehold. Dehart again announced that

the camera was not working and then that “Offender has been subdued.”

Moments later, Harrell stepped toward the dogpile and swung a baton at

Byrd’s arm. The force broke Byrd’s arm, and he fell unconscious. For the

next two minutes, the team placed Byrd’s arms and legs in restraints, before

standing him up to walk him to the infirmary.

A post-incident use of force report claimed Harrell’s baton strike was

motivated by his spotting a weapon in Byrd’s hand. Photos in the record show

a crude wooden shank reportedly recovered during the incident. Byrd denies

(and continues to deny) he had any weapon.

Byrd filed two grievances with prison grievance counsellor (and

defendant) Kelli Ward. Use of Force Monitor Evelyn Jenkins heard the

grievances and referred them to the Office of Inspector General for review.

Jenkins’s report opined that Harrell had used excessive force against Byrd in

striking his arm and stated that the video showed no weapon in Byrd’s hand.

The inspector general’s office, however, disagreed and found Harrell’s

actions appropriate.

In 2014, Byrd brought a pro se lawsuit against Harrell and Ward. He

alleged Eighth Amendment violations for excessive force, failure to protect,

and failure to provide medical treatment. Harrell and Ward moved for

2

At the moment before the handheld’s malfunction, the surveillance footage

shows that Harrell’s baton might have hit the camera lens during a backswing.

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summary judgment, invoking qualified immunity. Harrell claimed he used

force in response to Byrd’s having a shank in his hand. Ward argued she had

not been deliberately indifferent to Byrd’s grievances and had no knowledge

or control over his medical care. Defendants submitted video footage,

grievance reports, use of force reports, and evidence of Byrd’s past

noncompliance and weapon possession.

The district court agreed Harrell was entitled to qualified immunity.

Examining the summary judgment evidence and methodically analyzing the

five factors from Hudson v. McMillian, 503 U.S. 1 (1992), the court assumed

that Byrd did not have a weapon and granted summary judgment in Harrell’s

favor regardless, finding no constitutional violation. As for the failure-to-

protect, failure-to-treat, and failure-to-decontaminate claims, the court

granted summary judgment for Ward. Byrd appealed.

II.

We review a summary judgment de novo. Bourne v. Gunnels, 921 F.3d

484, 490 (5th Cir. 2019) (citation omitted); Fed. R. Civ. P. 56(a). When a

government official has asserted qualified immunity, “the burden shifts to

the plaintiff to ‘rebut the defense by establishing that the official’s allegedly

wrongful conduct violated clearly established law and that genuine issues of

material fact exist regarding the reasonableness of the official’s conduct.’”

Bourne, 921 F.3d at 490 (quoting Gates v. Tex. Dep’t of Protective & Regul.

Servs., 537 F.3d 404, 419 (5th Cir. 2008)). We view the evidence in the light

most favorable to Byrd and draw all inferences in his favor, “so long as they

are not ‘blatantly contradicted’ or ‘utterly discredited’ by a video

recording.” Id. at 491–92.

A.

We begin and end by asking whether Byrd showed a genuine dispute

about whether Harrell used excessive force. When prison officials use force

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to maintain or restore order in a prison, “the core judicial inquiry

is . . . whether force was applied in a good-faith effort to maintain or restore

discipline, or maliciously and sadistically to cause harm.” Hudson, 503 U.S.

at 7. We focus on the prison official’s “subjective intent” and determine it

“by reference to the well-known Hudson factors.” Cowart v. Erwin, 837 F.3d

444, 452–53 (5th Cir. 2016). They are “(1) the extent of the injury suffered,

(2) the need for the application of force, (3) the relationship between that

need and the amount of force used, (4) the threat reasonably perceived by the

responsible officials, and (5) any efforts made to temper the severity of a

forceful response.” Bourne, 921 F.3d at 491 (cleaned up). As explained below,

we find no error in the district court’s application of the Hudson factors.

(1)

All agree Byrd suffered more than a de minimis injury. The first factor

weighs in Byrd’s favor. See Cowart, 837 F.3d at 453; Wilkins v. Gaddy, 559

U.S. 34, 37–38 (2010).

(2)

But force was obviously needed. The officers faced a violent inmate

who had previously told Ward that he “will kill before [he] get[s] killed.” On

the day in question, Byrd had poured water on officers, refused to comply

with orders for a strip search, resisted even after being sprayed with chemical

agents, and violently forced his way out of his cell. Byrd’s determined

resistance required determined force in response. The second factor weighs

in Harrell’s favor.

(3)

The third factor asks whether striking Byrd’s arm was needed to

subdue him. This factor is a closer call. Harrell argues Byrd kept resisting

until “the final blow,” necessitating “a continuum of force that escalated

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parallel to Byrd’s resistance.” The video supports the view that Byrd was

steeled to resist anything the guards threw at him—for instance, his response

to being sprayed with mace was, “Is that all you got?” He then forced his way

out of his cell through five guards with riot shields. On the other hand, Byrd

was on the ground with four men on top of him and one holding him in a

chokehold before Harrell struck his arm. And we must assume, as did the

magistrate judge and district court, that Byrd did not have a weapon. So, the

application of force—while obviously necessary—cannot be justified by the

need to neutralize an armed prisoner.

Nonetheless, Harrell’s strikes came at the culmination of a violent

encounter with a prisoner determined to fight through chemical spray and

riot shields. The Supreme Court has told judges not to micro-manage the

force necessary to quell such volatile situations. We are to accord prison

officials “wide-ranging deference” in “prison security measure[s] taken in

response to an actual confrontation with riotous inmates.” Whitley v. Albers,

475 U.S. 312, 321–22 (1986); see also, e.g., Waganfeald v. Gusman, 674 F.3d

475, 485 (5th Cir. 2012) (emphasizing “deference” owed officials in the

“execution of policies and practices that in their judgment are needed to

preserve internal order and discipline and to maintain institutional security”

(quoting Bell v. Wolfish, 441 U.S. 520, 547 (1979))). So, this factor favors

Harrell, if only modestly.

(4)

We next ask whether Harrell subjectively perceived a reasonable

threat when he struck Byrd or instead acted maliciously to cause harm.

Bourne, 921 F.3d at 491. There is no dispute that Harrell faced, as he puts it,

a “hostile, combative, utterly noncompliant” prisoner who was committed

to violent resistance.

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Byrd counters that there is evidence that Harrell maliciously broke his

arm in retaliation for another officer’s resignation after Byrd accused the

officer of using excessive force. This theory lacks record support. While it

appears true that another officer resigned his position the day before this

altercation, Byrd offers only his own personal belief to support his theory of

retaliation.

That speculation does not create a genuine fact issue as to Harrell’s

motivation for striking Byrd. The altercation would not have taken place but

for Byrd’s violent resistance. Nothing in the record suggests Harrell used the

melee as a pretext to punish Byrd for another officer’s resignation. So, it is

undisputed that Harrell deployed “in a good-faith effort to maintain or

restore discipline” instead of “maliciously and sadistically to cause harm.”

Hudson, 503 U.S. at 6–7. This factor weighs against Byrd.

(5)

Finally, the efforts to temper the severity of the force. The video

shows that Byrd, although restrained by several guards, continued to

violently resist. Harrell struck his arm with the baton and then stopped

striking him the moment Byrd stopped resisting. As explained above, judges

should not attempt to micro-manage the amount of force used to subdue a

violently resisting inmate. See Whitley, 475 U.S. at 321–22. This factor favors

Harrell.

* * *

In sum, we see no error in the district court’s application of the

Hudson factors to the undisputed facts here.

III.

Finally, Byrd also challenges the dismissal of his failure-to-

decontaminate, failure-to-provide-medical-treatment, and failure-to-protect

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claims. Byrd failed to show Ward knew of the need to decontaminate or

provide medical treatment. See Farmer v. Brennan, 511 U.S. 825, 832 (1994);

Domino v. Tex. Dep’t of Crim. Just., 239 F.3d 752, 756 (5th Cir. 2001). And as

for Ward’s treatment of Byrd’s grievances, Byrd’s vague assertions that

some unidentified officers had threatened him could not have put Ward on

notice of a substantial risk of harm to the prisoner. See Farmer, 511 U.S. at

837; see also, e.g., Armstrong v. Price, 190 F. App’x 350, 351–53 (5th Cir. 2006)

(unpublished). The district court properly held Ward entitled to qualified

immunity and dismissed these claims as meritless.

* * *

The district court’s judgment is AFFIRMED.

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James E. Graves, Jr., Circuit Judge, concurring:

I agree with the result in this case because Byrd’s asserted right was

not clearly established when this case’s events happened in 2014. But I would

take this opportunity to establish that right.

Under the undisputed evidence—and viewing the disputed evidence

in the light most favorable to Byrd 1—a jury could rationally conclude that

Sergeant Harrell maliciously and unnecessarily struck Byrd with a baton with

bone-breaking force. The parties dispute whether Byrd was armed, but the

surveillance footage clearly shows that Byrd’s left hand was empty when

Sergeant Harrell struck Byrd’s left forearm and there is no summary

judgment evidence showing that Byrd was otherwise armed. And it is

undisputed that Sergeant Harrell repeatedly struck Byrd’s left arm with a

1

Although courts may not resolve credibility issues on summary judgment, see

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (“Credibility determinations, the

weighing of the evidence, and the drawing of legitimate inferences from the facts are jury

functions”), inconsistencies in the defendants’ description of events are noteworthy and

would be relevant at trial. Cf. Lodge Hall Music, Inc. v. Waco Wrangler Club, Inc., 831 F. 2d

77, 81 (5th Cir. 1987) (“We hold that where a party opposing summary judgment alleges

that the affidavits upon which the motion is based are perjured, and presents evidence that

could lead a reasonable person to doubt the credibility of the affiant’s testimony, summary

judgment should not be granted.”). After the incident, Sergeant Harrell told superiors that

Byrd “came out . . . with a weapon,” so Byrd struck Harrell “to prevent injury to staff and

[him]self.” A report written right after the incident states that Byrd “came out on the run”

holding an improvised weapon with which he “attacked” staff, and that Byrd “was fighting

with staff very aggressively during the use of force,” which aggression continued after a

weapon was recovered. The report also denied that staff choked Byrd. This report,

unsurprisingly, deemed Harrell’s use of force justified. And Officer Dehart, the officer who

filmed the incident, told her supervisors that she dropped the camera during the incident,

rendering useless the footage she took. But when an administrative monitor reviewed

surveillance footage, she concluded that these statements were exaggerations at best and,

in some instances, outright fabrications. For example, the administrative monitor

concludes from the footage that: (i) Byrd did not have a weapon; (ii) staff continued kicking

Byrd after he was subdued; (iii) staff choked Byrd; (iv) Officer Dehar did not actually drop

the camera.

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baton with enough force to break it, while the arm was free and not holding a

weapon, and while four guards pinned Byrd’s body and a fifth held Byrd’s

neck in a chokehold. Even if Byrd charged out of the cell, a jury might well

conclude that the need for bone-breaking force had been negated by the time

Sergeant Harrell repeatedly struck Byrd with a riot baton, and therefore that

Sergeant Harrell acted “maliciously and sadistically to cause harm.” Hudson

v. McMillian, 503 U.S. 1, 6-7 (1992). Cf. Lytle v. Bexar Cty., Tex., 560 F.3d

404, 413 (5th Cir. 2009) (“[A]n exercise of force that is reasonable at one

moment can become unreasonable in the next if the justification for the use

of force has ceased.”); Aucoin v. Cupil, 958 F.3d 379, 380 (5th Cir.), cert.

denied, 141 S. Ct. 567 (2020) (“[W]hen a prison inmate engages in willful

misconduct, a prison guard may use reasonable force to restrain him—but

after the inmate submits, there is no need, and thus no justification, for the

further use of force.”). That is enough to find a constitutional violation in

this case.

Although the majority recognizes that Sergeant Harrell used an

unjustifiable degree of force, it nonetheless concludes that this Hudson factor

actually favors Sergeant Harrell, albeit “modestly,” simply because we must

“accord prison officials ‘wide-ranging deference.’” Ante, at 6. Though we

certainly owe such deference, we also have a responsibility to identify

constitutional violations. And we must identify the line separating

permissible from impermissible force not just to preserve rights, but to

inform prison officials about what conduct will expose them to the burdens

of litigation. See White v. Pauly, 137 S. Ct. 548, 552 (2017) (noting that the

purpose of qualified immunity’s clearly-established prong is to “giv[e] fair

and clear warning to officers” about what conduct will expose them to

liability). The undisputed evidence in this case shows a constitutional

violation. We should unequivocally state that conclusion.

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Nonetheless, I concur in the majority’s judgment because Sergeant

Harrell is entitled to qualified immunity under our caselaw, at least as it stood

when this case’s events happened. In 2014, we declined to “endorse a per se

rule that no force may ever be used after an inmate has been subjected to

measures of restraint—particularly if the effect of the restraint is only partial.”

Kitchen v. Dallas Cty., Tex., 759 F.3d 468, 479 n.30 (5th Cir. 2014), abrogated

on other grounds by Kingsley v. Hendrickson, 576 U.S. 389 (2015) (emphasis

added). That holding insulates Sergeant Harrell from liability. But I would

take this opportunity to establish for future cases that prison officials may not

continue to apply bone-breaking force to an inmate who is partially restrained

but who poses no threat to any officer, even if the inmate had earlier

necessitated the use of some force.

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